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Articles 1 - 30 of 34
Full-Text Articles in Law
Advocacy And Contempt—Part Two: Charting The Boundaries Of Contempt: Ensuring Adequate Breathing Room For Advocacy, Louis S. Raveson
Advocacy And Contempt—Part Two: Charting The Boundaries Of Contempt: Ensuring Adequate Breathing Room For Advocacy, Louis S. Raveson
Washington Law Review
Professor Raveson previously argued that the Constitution limits the contempt power to the punishment of actual obstructions of the administration of justice. In this Article, he maintains that any standard for defining contempt that is less restrictive than actual obstruction or the imminent threat of obstruction would be unconstitutionally overbroad. In addition, Professor Raveson discusses the inevitable imprecision that inheres even in the actual obstruction standard for contempt. He explains that the appropriate division between permissible advocacy and contempt must reflect a balance between the frequently conflicting goals of a trial in order to maximize the value of these interests …
Willful Copyright Infringement: In Search Of A Standard, Jeffrey M. Thomas
Willful Copyright Infringement: In Search Of A Standard, Jeffrey M. Thomas
Washington Law Review
The Copyright Act of 1976 provides for an increase in statutory damages where copyright infringement is willful. Because it is undefined in the Act, the meaning of willfulness is left to judicial interpretation. Courts have disagreed on the proper definition of willfulness and adopted tests that are vague and sometimes inconsistent with the Act's statutory damages provision. This Comment proposes an alternative to the present definitions and tests, and suggests that courts adapt a two-part willfulness test from the patent law test, which requires knowledge and an affirmative duty to investigate.
Post-Employment Lobbying Restrictions On The Legislative Branch Of Government: A Minimalist Approach To Regulating Ethics In Government, Joseph I. Hochman
Post-Employment Lobbying Restrictions On The Legislative Branch Of Government: A Minimalist Approach To Regulating Ethics In Government, Joseph I. Hochman
Washington Law Review
Federal post-employment lobbying restrictions currently apply only to former executive branch employees. Congress is considering legislation that expands the prohibitions to include the legislative branch. This Comment discusses the proposed legislation in light of first amendment concerns, and concludes that the legislation is constitutional. Moreover, the legislation strikes an optimal balance between the interests of the public, the government, lobbyists, and their clients
The Refugee Act Of 1980: Suggested Reforms In The Overseas Refugee Program To Safeguard Humanitarian Concerns From Competing Interests, Tahl Tyson
Washington Law Review
The Refugee Act of 1980 established an overseas refugee admissions program based on systematic consultations between Congress and the executive branch. The author suggests that refugee policy is subject to four competing influences: humanitarian concerns, foreign policy, special interest groups, and domestic concerns. Of these influences, the author argues that humanitarian concerns should be the primary basis for United States refugee policy. However, humanitarian concerns are currently overwhelmed by the other three influences. This Comment critiques the lack of safeguards in the Act for humanitarian concerns and proposes specific reforms.
Are Pharmacists Responsible For Physicians' Prescription Errors? Mckee V. American Home Products, 113 Wash. 2d 701, 782 P.2d 1045 (1989), Elizabeth D. Smith
Are Pharmacists Responsible For Physicians' Prescription Errors? Mckee V. American Home Products, 113 Wash. 2d 701, 782 P.2d 1045 (1989), Elizabeth D. Smith
Washington Law Review
In McKee v. American Home Products, the Washington Supreme Court held that pharmacists' duties do not include contacting physicians who make judgment errors when prescribing medication. When physicians make obvious errors, however, juries decide whether pharmacists should contact physicians. This Note examines McKee and proposes that either juries should determine pharmacists' duties in all cases or, alternatively, the legislature should require pharmacists to contact physicians whenever prescriptions as issued could harm patients.
"Keep The Change!": A Critique Of The No Actual Injury Defense To Liquidated Damages—Lind Building Corp. V. Pacific Bellevue Developments, 55 Wash. App. 70, 776 P.2d 977 (Div. 1), Review Denied, 113 Wash. 2d 1021, 781 P.2d 1322 (1989), James Arthur Weisfield
Washington Law Review
Most courts judge the enforceability of liquidated damages clauses as of the time of contract formation. In Lind Building Corp. v. Pacific Bellevue Development, the court created a "no actual injury" defense to enforcement of liquidated damages clauses by assessing validity as of the time of trial. This Note concludes that a "no actual injury" defense to liquidated damages recovery negates the benefits of agreed remedies, fails to provide a principled policy for enforcement, and produces inequitable results.
The Application Of Section 504 Of The Rehabilitation Act To The Segregation Of Hiv-Positive Inmates, Ayesha Khan
The Application Of Section 504 Of The Rehabilitation Act To The Segregation Of Hiv-Positive Inmates, Ayesha Khan
Washington Law Review
Acquired Immune Deficiency Syndrome has posed a formidable challenge to correctional administrators because of the perception that prisons and jails hold high concentrations of individuals at risk of developing the disease. Housing decisions are particularly difficult. Administrators often segregate inmates who have AIDS, ARC or asymptomatic HIV infection from the general prison population by housing them in a separate unit. This Article analyzes whether such a practice violates section 504 of the Rehabilitation Act, which forbids programs which receive federal financial assistance from discriminating against "otherwise qualified" handicapped persons. The analysis focuses on three issues: the epidemiology of HIV in …
Factual Frivolity: Sanctioning Clients Under Rule 11—Business Guides, Inc. V. Chromatic Communications Enterprises, 892 F.2d 802 (9th Cir. 1989), Cert. Granted, 110 S. Ct. 3235 (1990), Peter Ramels
Washington Law Review
In Business Guides, Inc v. Chromatic Communications Enterprises, the Ninth Circuit held that clients can be sanctioned under Federal Rule of Civil Procedure 11, if they fail to make an objectively reasonable inquiry to ensure that documents submitted to a court are well grounded in fact. In this case, the Ninth Circuit rejected the subjective good faith standard adopted by the Second Circuit, which held in Calloway v. Marvel Entertainment Group, that clients can be sanctioned only if they knowingly submit claims that are not well grounded in fact. This Note approves of the Business Guides decision, but suggests that …
Protecting The Environment With Salvage Law: Risks, Rewards, And The 1989 Salvage Convention, Brian F. Binney
Protecting The Environment With Salvage Law: Risks, Rewards, And The 1989 Salvage Convention, Brian F. Binney
Washington Law Review
Current marine salvage law often provides only limited incentives for salvors to prevent pollution. In many cases, it also inadequately compensates them for the risks they must assume when they assist a ship that threatens the environment. This Comment analyzes possible solutions to these problems under current salvage law, and then discusses the reforms offered by the 1989 Convention on Salvage. It concludes that current salvage law is inadequate to protect the public from the threat of pollution, and that the Convention on Salvage, if adopted, could greatly improve incentives for marine salvors to protect the environment.
Overextension Of Arbitral Authority: Punitive Damages And Issues Of Arbitrability—Raytheon Co. V. Automated Business Systems, Inc., 882 F.2d 6 (1st Cir. 1989), Douglas R. Davis
Overextension Of Arbitral Authority: Punitive Damages And Issues Of Arbitrability—Raytheon Co. V. Automated Business Systems, Inc., 882 F.2d 6 (1st Cir. 1989), Douglas R. Davis
Washington Law Review
Recently, commercial arbitrators' authority to award a full spectrum of remedies has greatly increased. In Raytheon Co. v. Automated Business Systems, Inc., the United States Court of Appeals for the First Circuit affirmed an arbitral award of punitive damages. The court upheld the award despite the arbitrators' failure to address a prehearing objection to the arbitrability of such sanctions. This Note concludes that courts should require arbitrators to resolve pre-hearing challenges to their authority and recommends that arbitrators interpret broadly-drafted arbitration clauses to encompass only traditional contract remedies.
Not On Claims Alone: Determining Indian Title To Intertidal Lands—United States V. Aam, 887 F.2d 190 (9th Cir. 1989), Andrea Geiger Oakley
Not On Claims Alone: Determining Indian Title To Intertidal Lands—United States V. Aam, 887 F.2d 190 (9th Cir. 1989), Andrea Geiger Oakley
Washington Law Review
The equal footing doctrine creates a presumption against conveyance of the beds of navigable waters by the United States prior to statehood. Where submerged lands lie within the boundaries of an Indian reservation, the presumption may conflict with the canons of construction applicable in Indian law. In United States v. Aam, the Ninth Circuit attempted to resolve this conflict by establishing a per se test to determine when the presumption is rebutted. This Note examines the Ninth Circuit's opinion and concludes that in light of the respective policies underlying the conflicting doctrines, the court's test gives insufficient weight to the …
Washington's Discretionary Immunity Doctrine And Negligent Early Release Decisions: Parole And Work Release, Marie Aglion
Washington's Discretionary Immunity Doctrine And Negligent Early Release Decisions: Parole And Work Release, Marie Aglion
Washington Law Review
The Washington Supreme Court has held the discretionary immunity doctrine to constitute a highly circumscribed exception to the rule of governmental liability. An analysis of Washington case law reveals that parole and work release determinations properly fall outside the pale of the exception. A negligent decision to place a sex or violent offender in a parole or work release program therefore should subject the state to liability. The Author proposes a negligence-based liability rule that would create incentives to due care on the part of state administrators responsible for parole and work release decisions without imposing an unreasonable burden on …
Regulating Physician Investment And Referral Behavior In The Competitive Health Care Marketplace Of The '90s—An Argument For Decentralization, Kimberly A. King
Regulating Physician Investment And Referral Behavior In The Competitive Health Care Marketplace Of The '90s—An Argument For Decentralization, Kimberly A. King
Washington Law Review
Congress regulates the investment and referral practices of physicians through the federal Anti-Fraud and Abuse statute. The Anti-Fraud and Abuse statute, however, limits the ability of physicians to adapt their investment and referral practices to an increasingly competitive health care industry. In order to restrict fraudulent practices without restricting competition, the authority to regulate physician investment and referral practices should be returned to the states, who can recognize and exempt beneficial competitive practices from the reach of the applicable state statutes.
Advocacy And Contempt: Constitutional Limitations On The Judicial Contempt Power. Part One: The Conflict Between Advocacy And Contempt, Louis S. Raveson
Advocacy And Contempt: Constitutional Limitations On The Judicial Contempt Power. Part One: The Conflict Between Advocacy And Contempt, Louis S. Raveson
Washington Law Review
The courts' inherent power to punish misconduct that interferes with the judicial process as criminal contempt often conflicts with attorneys' first amendment and due process rights, and their clients' sixth amendment rights to vigorous legal representation. In balancing these competing interests, the Supreme Court has employed seemingly diverse standards to demarcate the constitutional limitations on the substantive scope of the contempt power. Professor Raveson argues that the Constitution should limit the contempt power so that it may only be used to punish actual obstructions of the administration of justice. He maintains that because the goals of our system of justice …
Teaching Tax Law After Tax Reform, Martin D. Ginsburg
Teaching Tax Law After Tax Reform, Martin D. Ginsburg
Washington Law Review
Professor Ginsburg compares the teaching of individual income taxation before and after the extensive statutory revisions of the 1980s. The pervasive question, what is income, remains the central inquiry in the basic tax course, he observes, and the great classifications, personal versus commercial and current versus capital, unavoidably persist. The development in tax law that has most significantly changed the way the subject is taught, he believes, is embodied in the recent enactment of a variety of Internal Revenue Code provisions which, while facially inconsistent in their approach to particular cases, have in common an appreciation of differences in present …
Property Of The Estate After Confirmation Of A Chapter 13 Repayment Plan: Balancing Competing Interests, Vickie L. Vaska
Property Of The Estate After Confirmation Of A Chapter 13 Repayment Plan: Balancing Competing Interests, Vickie L. Vaska
Washington Law Review
Under Chapter 13 of the Bankruptcy Code, it is unclear whether property of the estate and protection of the automatic stay continue after confirmation of debtor's repayment plan. Courts use diverse approaches to determine whether property of the estate exists after confirmation, resulting in confusion for trustees, debtors, and creditors. This Comment proposes that bankruptcy courts use their equitable powers and adopt a test that balances the competing interests of debtor and creditor
Perpetuities: A Father's Reply, Robert L. Fletcher
Perpetuities: A Father's Reply, Robert L. Fletcher
Washington Law Review
Susan has persuasively argued for adoption of a method that would look at the various chains of events—the resolving sequences—thus to separate those that fail from those that pass. We differ in only one important respect. In some instances she would use a life or portion of a life that is extraneous to the vesting reached in a particular sequence. I would not. In doing so, she in effect adopts Professor Dukeminier's "affecting lives" approach. To put this in my terms, she uses any life or portion of a life that is pertinent to vesting of any sequence within the …
Atomic Bomb Testing And The Warner Amendment: A Violation Of The Separation Of Powers, William A. Fletcher
Atomic Bomb Testing And The Warner Amendment: A Violation Of The Separation Of Powers, William A. Fletcher
Washington Law Review
Hundreds of thousands of American soldiers and civilians were exposed to radiation during atmospheric tests of atomic bombs between 1946 and 1963. An undetermined number of them are now ill or dead from diseases traceable to that exposure. In the early 1980s, some of the soldiers and civilians, or their survivors, brought damage suits against the private contractors that had helped the United States government carry out the tests. In 1984, Congress interfered with the judicial process by passing the Warner Amendment, which retroactively provided sovereign immunity to the contractors and required dismissal of the suits. Professor Fletcher shows that …
Perpetuities: Three Essays In Honor Of My Father, Susan F. French
Perpetuities: Three Essays In Honor Of My Father, Susan F. French
Washington Law Review
The Rule Against Perpetuities is afrequent source offrustration and puzzlement for property students, professors, and practitioners In this Article, the Author presents three essays; her method of analyzing perpetuities problems, a proposalf or refinement of the common law rule, and an examination of the possible benefits of dead hand control. Although the Author has followed in her father's footsteps, becoming a property professor, some of her views on perpetuities diverge from his. Because scholarly discussion of perpetuities historically has taken the form of "Article and Reply" in various Law Reviews, Professor Robert L Fletcher's response follows his daughter's essays.
Gestational Substance Abuse: A Call For A Thoughtful Legislative Response, Kristen Rachelle Lichtenberg
Gestational Substance Abuse: A Call For A Thoughtful Legislative Response, Kristen Rachelle Lichtenberg
Washington Law Review
Gestational substance abuse seriously threatens fetal health. Recently, many states have prosecuted women who abuse drugs or alcohol during pregnancy. This Cornment argues that Roe v. Wade, 410 U.S. 113 (1973), should govern state intervention in cases of gestational substance abuse. Because criminal prosecution fails to prevent gestational substance abuse, a state seeking to intervene should use civil commitment as the means of intervention.
The "Same Criminal Conduct" Exception Of The Washington Sentencing Reform Act: Making The Punishment Fit The Crimes—State V. Collicott, 112 Wash. 2d 399, 771 P.2d 1137 (1989), Joseph P. Bennett
Washington Law Review
Under the Washington Sentencing Reform Act (SRA), two or more offenses committed in one transaction count as criminal history for the purpose of enhancing the sentence for each offense, unless the offenses encompass the "same criminal conduct." In State v. Collicott, the Washington Supreme Court held that offenses that share statutory elements constitute the same criminal conduct. The court's previous approach in State v. Dunaway focused on whether one crime furthered another. Analysis demonstrates that Dunaway better provides for proportionate sentences, and coupled with the merger doctrine, adequately prevents double punishment. Thus, the Washington Legislature should amend the SRA to …
Federal Labor Law Preemption Of State Anti-Takeover Law: A Case Of First Impression—Air Line Pilots Association, International V. Ual Corp., 874 F.2d 439 (7th Cir. 1989), Patrick M. Madden
Federal Labor Law Preemption Of State Anti-Takeover Law: A Case Of First Impression—Air Line Pilots Association, International V. Ual Corp., 874 F.2d 439 (7th Cir. 1989), Patrick M. Madden
Washington Law Review
Federal labor laws generally preempt state laws that conflict with or frustrate the federal labor scheme. In Air Line Pilots Association, International v. UAL Corp., the Seventh Circuit held that federal law did not preempt an anti-takeover statute that invalidated anti-takeover provisions in a collective bargaining agreement. This Note analyzes the court's holding and suggests that the court misapplied judicial precedent. Because state anti-takeover laws as applied to labor agreements conflict with and frustrate the federal labor scheme, this Note concludes that these state laws should be preempted.
Crossing The Line Between Rough Remedial Justice And Prohibited Punishment: Civil Penalty Violates The Double Jeopardy Clause—United States V. Halper, 109 S. Ct. 1892 (1989), Lynn C. Hall
Washington Law Review
Historically, the constitutional guarantee against double jeopardy has been triggered primarily in criminal prosecutions. It has not encompassed civil monetary penalties. In United States v. Halper, the Supreme Court expanded double jeopardy protection. The Court held that government imposition of a civil monetary penalty on a defendant who has been criminally convicted for the same offense is punishment to the extent that the penalty clearly exceeds compensation. The punitive portion of the civil penalty, according to the Court, is multiple punishment prohibited by the Double Jeopardy Clause. This Note examines Halper and its effect on legislatures, prosecutors, and courts. The …
Protecting Puget Sound: An Experiment In Regional Governance, Katherine Fletcher
Protecting Puget Sound: An Experiment In Regional Governance, Katherine Fletcher
Washington Law Review
The 1985 Puget Sound Water Quality Act set in motion an ambitious experiment in regional problem-solving: a comprehensive and coordinated approach to protecting Puget Sound from pollution and degradation. This Article summarizes the challenges of regional governance, reviews the background and implementation of the 1985 Act, and discusses some of the controversies and challenges associated with the effort to protect Puget Sound. Dedication: This Article is dedicated to my father, who raised me with a sense of place.
Solutions For Uneasy Neighbors: Regulating The Reservation Environment After Brendale V. Confederated Tribes & Bands Of Yakima Indian Nation, 109 S. Ct. 2994 (1989), Craighton Goeppele
Solutions For Uneasy Neighbors: Regulating The Reservation Environment After Brendale V. Confederated Tribes & Bands Of Yakima Indian Nation, 109 S. Ct. 2994 (1989), Craighton Goeppele
Washington Law Review
The United States Supreme Court's decision in Brendale v. Confederated Tribes & Bands of Yakima Indian Nation undermines comprehensive land use planning in some parts of Indian reservations and contributes to an environment of legal uncertainty on reservations. The loss of effective land use planning on Indian reservations will have an adverse impact on the interests of both tribal members and non-members. Extension of Brendale to other forms of environmental regulation would have an even more detrimental impact on the responsible development of reservations. This Note exposes the infeasibility of Brendale and suggests a cooperative approach for resolving jurisdictional conflicts …
Regulating The "Gift Of Life"—The 1987 Uniform Anatomical Gift Act, Ann Mcintosh
Regulating The "Gift Of Life"—The 1987 Uniform Anatomical Gift Act, Ann Mcintosh
Washington Law Review
Demand for human transplant organs exceeds the supply. The 1987 Uniform Anatomical Gift Act provides a model for state laws intended to alleviate this shortage. This Comment analyzes these proposed laws in light of their potential impact on, first, the organ shortage and, second, the legal rights of donors and their families. Enactment of the 1987 Uniform Anatomical Gift Act can increase organ donation in Washington while intruding minimally on family and physician control of the donation process.
Creditors' Rights Against Nonprobate Assets In Washington: Time For Reform, Thomas R. Andrews
Creditors' Rights Against Nonprobate Assets In Washington: Time For Reform, Thomas R. Andrews
Washington Law Review
The increasing popularity of nonprobate transfers of property at death has created a "revolution" in family wealth transmission. Yet the law on creditors' rights to reach such transfers is badly confused. In some cases, exemptions from creditors' claims are far broader than can be justified. In others, existing creditors' rights are protected but undefined. In still others, it is unclear whether creditors can reach the property at all. There is no procedure for the enforcement of such rights as creditors may have no specified time limit within which claims may be brought. This lack of system invites abuse and is …
Child Sexual Abuse And Criminal Statutes Of Limitation: A Model For Reform, Jessica E. Mindlin
Child Sexual Abuse And Criminal Statutes Of Limitation: A Model For Reform, Jessica E. Mindlin
Washington Law Review
Many states permit courts to toll criminal statutes of limitation in a child sexual abuse case if the victim is under a minimum age, or if the offender prevents the victim from reporting the abuse. Twenty-four states have no such tolling provision, however, and their state courts have not devised a common law solution to avoid the problem of time-barred prosecutions. This Comment examines child sexual abuse in the context of state criminal law. It concludes that statutes of limitation present a formidable obstacle to the successful prosecution of perpetrators of child sexual abuse, and proposes a model legislative amendment …
"The Judge Would Then Be The Legislator": Dismantling Separation Of Powers In The Name Of Sentencing Reform—Mistretta V. United States, 109 S. Ct. 647 (1989), Kristin L. Timm
Washington Law Review
In the Sentencing Reform Act of 1984 Congress created the United States Sentencing Commission, an independent agency in the judicial branch charged with promulgating binding sentencing guidelines for federal crimes. In Mistretta v. United States, the Supreme Court held that the Sentencing Reform Act does not violate separation of powers principles. This Note asserts that the Court misapplied separation of powers theory, and that the Sentencing Commission violates separation of powers in two ways. First, by delegating to the judicial branch the authority to create sentencing guidelines which have the effect of law, Congress impermissibly aggrandized the core function of …
Opting Out Of Fiduciary Duties: A Response To The Anti-Contractarians, Henry N. Butler, Larry E. Ribstein
Opting Out Of Fiduciary Duties: A Response To The Anti-Contractarians, Henry N. Butler, Larry E. Ribstein
Washington Law Review
Professors Butler and Ribstein present an extensive analysis of opting out of fiduciary duties, based on the contractual theory of the corporation and a substantial body of economic literature, as well as a comprehensive response to prominent corporate law commentators who have argued that private ordering of corporate manager duties should be restricted by mandatory legal rules.